Presently before the Court is defendants' summary judgment motion. (Dkt. No. 70: Defs. Notice of Motion.) The parties have consented to the decision of this motion by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 74.)

For the reasons set forth below, defendants' motion is GRANTED.

FACTS

The evidence in the summary judgment record, construed in the light most favorable

Tamika Taylor, Cucuta's girlfriend, resided in Apt. 301 with her son Syncere, her mother Christine Alonzo, and her brother Andre Montgomery. (Dkt. No. 72: Defs. Rule 56.1 Stmt. ¶ ¶ 18-20; Ex. C: Taylor Dep. at 15.) Cucuta's name was not on the lease, but he stayed in Apt. 301 on weekends and occasionally during the week. (Defs. Rule 56.1 Stmt. ¶ ¶ 22-23; Taylor Dep. at 15-17.) Cucuta did not have a key and did not contribute to the rent, but kept clothes and sneakers in a closet he shared with Taylor. (Defs. Rule 56.1 Stmt. ¶ 22; Taylor Dep. at 15-17.) When Cucuta stayed the night, he exclusively stayed in the master bedroom with Taylor. (Defs. Rule 56.1 Stmt. ¶ 23; Taylor Dep. at 26.)

Dep. at 31.)[4] Taylor opened the door and Capt. Radday and Lt. Ronda entered into the apartment's living room. (Defs. Rule 56.1 Stmt. ¶ 25; Taylor Dep. at 33, 41; Supp. H. Tr. at 100-01.)[5] Capt. Radday and Lt. Ronda announced that they had reason to believe Cucuta kept a gun there and that the apartment was being frozen until they obtained a search warrant. (Defs. Rule 56.1 Stmt. ¶ ¶ 26-27; Taylor Dep. at 33, 41.) Capt. Radday remained in the living room while Lt. Ronda stepped towards the doorway of the apartment and placed a call to get a search warrant. (Defs. Rule 56.1 Stmt. ¶ 28; Supp. H. Tr. at 102.) Capt. Radday escorted Taylor, Montgomery and Sincere into the hallway while the apartment was frozen. (Defs. Rule 56.1 Stmt. ¶ 29; Taylor Dep. at 60.) The officers asked whether anyone else was in the apartment and Taylor said no. (Taylor Dep. at 65.) However, Taylor later admitted to the officers that Adam Hogan, a friend, was still in the apartment. (Defs. Rule 56.1 Stmt. ¶ 31; Taylor Dep. at 65.) Hogan was found in a bedroom hiding under the covers. (Defs. Rule 56.1 Stmt. ¶ 32; Taylor Dep. at 65.) Still in the hallway, Taylor also told an officer that there was a gun in a closet in the master bedroom. (Defs. Rule 56.1 Stmt. ¶ ¶ 31, 33; Taylor Dep. at 61-63, 68.) Lt. Ronda brought Taylor back into the apartment so Taylor could show him exactly where the gun was located. (Defs. Rule 56.1 Stmt. ¶ 33; Taylor Dep. at 63, 68-69.) The police stated that they were not allowed to go into the closet and asked for Taylor's permission to search, but did not receive it. (Taylor Dep. at 64-65.) Taylor was brought back out into the hallway outside the apartment. (Defs. Rule 56.1 Stmt. ¶ 33; Taylor Dep. at 65.)

Cucuta was not present during the freeze and search of Apt. 301. (Defs. Rule 56.1 Stmt. ¶ 40; Cucuta Dep. at 63.)

Cucuta's Conviction

On October 9, 2012, Cucuta pled guilty to conspiracy to distribute crack cocaine. (Ex. M: Plea Tr. at 30.) Cucuta stated at his plea allocution that " between December 2010 and April 2011" he " agreed with at least one other person to possess and distribute more than 28 grams of crack cocaine" and that he was aware that what he was doing was wrong and illegal. (Plea Tr. at 29-30.)

ordered Cucuta to file an amended complaint " containing facts that show why each named defendant should be held liable for what occurred." (Dkt. No. 7: 4/10/13 Order at 3.) The Order also dismissed Cucuta's claims against the NYPD " because a New York City agency is not an entity that can be sued." (4/10/13 Order at 3.) Cucuta filed his second amended complaint on October 22, 2013, adding Capt. Kevin Radday as a defendant. (Dkt. No. 22: 2d Am. Compl.) The following summarizes the asserted claims and the factual evidence against the various defendants:

Detective Ortiz processed Cucuta at the 25th precinct after his arrest. Det. Ortiz questioned Cucuta about his whereabouts the night before. Det. Ortiz later joined Capt. Radday and Lt. Ronda at Apt. 301. (See pages 3-4 above; see also Ex. D: Cucuta Dep. at 127.) It appears that Cucuta attributes to Det. Ortiz the same Fourth Amendment violations ...

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